MAR Dilemmas of Regional Peacemaking: The Dynamics of the AU s Response to Darfur. Dr. A. Sarjoh Bah CENTER ON INTERNATIONAL COOPERATION

Transcription

1 MAR 2010 Dilemmas of Regional Peacemaking: The Dynamics of the AU s Response to Darfur Dr. A. Sarjoh Bah CENTER ON INTERNATIONAL COOPERATION 1 New York University

2 Center on International Cooperation The Center on International Cooperation (CIC) at New York University works to enhance international responses to humanitarian crises and global security threats through applied research and direct engagement with multilateral institutions and the wider policy community. It has an international reputation for agenda-setting work on post-conflict peacebuilding, global peace operations, and UN reform. Founded in 1996, CIC contributes to increasingly urgent debates about the future of multilateral institutions. CIC s research and policy-development programs help policymakers develop strategies for managing emerging and recurrent threats and to identify opportunities for institutional reform. Staff members have been directly involved in a series of high profile initiatives to improve the performance of the multilateral system - including the IAEA s Special Event on the Nuclear Fuel Cycle, and the reform process leading to the 2005 UN World Summit. Its research contributed to one of the major innovations agreed at the Summit: the creation of a UN Peacebuilding Commission. We also provide direct research and policy support to UN missions and other actors in the field. Our Afghanistan Reconstruction Program advised the government and the UN mission on the drafting and negotiation of the Afghanistan Compact; the Post-Conflict Peacebuilding program supports Timor Leste s reconstruction strategy. 2 In Pursuit of Sustainable Peace: The Seven Deadly Sins of Mediation

3 Dilemmas of Regional Peacekeeping: The Dynamics of the AU s Response to Darfur Dr. A. Sarjoh Bah Table of Contents List of Acronyms 2 Executive Summary 3 Recommendations 5 Introduction 6 Background to the AU 7 The Constitutive Act: An Interventionist Regime 7 The Political Track 8 The Darfur Peace Agreement (DPA) 8 Joint UN-AU Mediation 10 Internationalized Justice 11 The African Union High-Level Panel on Darfur 12 The Military/Peacekeeping Track 16 Transition to Hybridity 17 Resolution 1706 and the African Vote 17 The Consent Hurdle 18 Strategic and Operational Challenges for AMIS 20 Partnerships 21 Conclusion 22 Recommendations 24 Endnotes 26 1

4 Center on International Cooperation List of Acronyms AU African Union AUPD African Union High Level Panel on Darfur AUHIP African Union High Level Implementation Panel on Sudan AMIS African Union Mission in Sudan APF African Peace Facility ASF African Standby Force ACP Africa Caribbean and Pacific CSSDCA Conference on Security, Stability, Development and Cooperation in Africa CPA Comprehensive Peace Agreement CEWS Continental Early Warning System CMD Conflict Management Division DITF Darfur Integrated Task Force DPA Darfur Peace Agreement DPAIT DPA Implementation Team DDDC Darfur Darfur Dialogue and Consultation EU European Union EC European Commission PSC Peace and Security Council PAE Pacific Architects Engineers PSOD Peace Support Operations Division POW Panel of the Wise PCC Police Contributing Country TCC Troop Contributing Country IGAD Intergovernmental Authority on Development ICTR International Criminal Tribunal for Rwanda ICC International Criminal Court JRRD Justice and Reconciliation Response to Darfur JTRC Justice, Truth and Reconciliation Commission JEM Justice and Equality Movement LAS League of Arab States MILOB Military Observer NATO North Atlantic Treaty Organization NAC OAU PF SCSL SLA SPLA/M SADC UNAMID UNMIS UNSC North Atlantic Council Organization of African Unity Peace Fund Special Court for Sierra Leone Sudan Liberation Army Sudan People s Liberation Army/ Movement Southern African Development Community United Nations African Union Hybrid Mission in Darfur United Nations Mission in Sudan United Nations Security Council 2 Dilemmas of Regional Peacemaking

5 Executive Summary The African Union s (AU) peacemaking efforts in Darfur exposed the limits of implementing its ambitious peace and security agenda, and the absence of an effective international system to support regional peacemaking efforts. This paper contends that the AU s efforts brought to the fore three critical issues: first, the gap between the AU s mandate to intervene in situations involving war crimes, crimes against humanity and genocide as provided for in its founding charter, the Constitutive Act, and its capacity to do so; second, the absence of an international system to support regional peacemaking, especially when it involves deploying complex multidimensional peace operations; finally, it brought into sharper focus the inherent tensions and contradictions surrounding existing norms and emerging concepts such as sovereignty, the responsibility to protect (R2P) and internationalized justice through the International Criminal Court (ICC). The paper focuses on the AU s two pronged strategy in Darfur: Political and Military/ peacekeeping. From the outset the AU pushed for a political settlement of the conflict in Darfur. Starting with a ceasefire agreement in 2003, AU-led mediation efforts culminated in the signing of the now largely discredited Darfur Peace Agreement (DPA) in May The DPA - a partial agreement between the Government of Sudan (GoS) and one faction of the Sudan Liberation Army (SLA) - was rejected by the non-signatories and their civilian sympathizers. Since then, the search for a political settlement has yielded minimal results. The peace process continues to suffer setbacks due to, but not limited to, the following: a lack of commitment by the GoS and the armed groups, a splintering of the armed groups into small and unwieldy entities with no clear political agenda, and conflicting signals from key regional and international actors. On the military front, the AU deployed its second and largest peace operation, the African Union Mission in Sudan (AMIS) in AMIS which, started as a small observer force with an initial mandate to observe, monitor and report violations of the N Djamena Ceasefire had by the end of its tenure in 2007 grown to a multi-dimensional force of over 9,000 military, police and civilian personnel with a broader mandate including the protection of civilians. However, the mission was hobbled by the absence of a political settlement or a viable peace process that it could complement. Additionally, AMIS lacked the capacity and resources to implement its mandate and deal with the complex humanitarian and security situation. This precipitated a long-drawn out transition process - as the GoS refused to consent to the deployment of UN peacekeepers - that eventually morphed into the current United Nations African Union Hybrid Mission in Darfur (UNAMID); the first of its kind. In light of the above, this paper draws the following conclusions: First, despite acute resource constraints, the AU s response to the Darfur crisis demonstrated that it enjoys legitimacy among its members and internationally beyond the continent. The unanimity of the AU s Peace and Security Council (PSC) decisions, the contribution of uniformed personnel by its members, coupled with international financial and logistics support though inadequate - manifested its legitimacy. Second, the intervention exposed the gap between the ambitious peace and security agenda and the capacity to implement it. Given the inability of its members to provide materiel for AMIS, the AU relied almost entirely on donors to support the mission. Its heavy reliance on external support highlighted the absence of a structured international mechanism for providing support to regional organizations like the AU and raised critical questions about issues of ownership, sustainability, flexibility and predictability. Third, and related to the above, the AU s military/ peacekeeping response floundered due to four key reasons. Dilemmas of Regional Peacemaking 3

6 Center on International Cooperation I. Lack of cooperation by the feuding parties, including the GoS and the armed groups, undermined its overall peacekeeping venture. II. The disconnect between the decisions of the PSC and the capacity of the AU Commission to translate those decisions into action. III. AMIS s mandate, especially the protection of civilians, proved too ambitious given the paltry troop-to-task ratio and the lack of adequate force multipliers. Finally, the willingness and capacity gap that hobbled the AU s peacemaking efforts exposed the risks of mounting a response without the necessary resources. It was obvious that the GoS preferred the AU because it was a more benign option compared to other forms of international intervention. Meanwhile, the presence of AMIS served as an alibi for the international community as countries responded to pressure from advocacy groups by citing their support for the mission despite the full knowledge of the inadequacies of that support. IV. Resources - human and materiel - and donor support proved inadequate to the task of meeting the challenges of the mission. Fourth, the issue of consent a cardinal principle of UN peacekeeping - featured prominently after the AU proposed to handover its mission to the UN. For the AU, the issue of consent goes to the heart of its interventionist security regime, which sanctions intervention in situations involving war crimes, crimes against humanity and genocide. Thus, lack of cooperation by the GoS exposed the complexities of implementing the AU s interventionist principles. Moreover, it highlighted the challenges of implementing international concepts such as R2P, partly due to disagreement over the threshold for intervention, even in cases involving war crimes and crimes against humanity, as is allegedly the case in Darfur. Fifth, divisions among Permanent Members of the UN Security Council (UNSC) and other actors complicated the AU s peacemaking venture by contributing to the intransigence of the GoS and the armed groups. Meanwhile, the ICC s indictment of president Omar Bashir led to open rifts between the PSC and the UNSC seriously testing their evolving partnership. This prompted the PSC to establish the African Union High-Level Panel on Darfur (AUPD) to look into the best way of dealing with the lingering dilemma. The recommendations of the AUPD provide a solid roadmap on how to address the Darfur conflict and other conflicts in Sudan. 4 Dilemmas of Regional Peacemaking

7 Recommendations The paper makes the following recommendations: I. The AU should establish a high-level expert working group to clarify its position on critical principles such as sovereignty, consent and the responsibility to protect in light of the normative shift at the AU from nonintervention to non-indifference. II. The AU should ensure that its peacemaking efforts are guided by the principle of ownership as that would guarantee the acceptance of peace agreements by feuding parties and their supporters, thereby enhancing the legitimacy of such agreements. III. Before authorizing the deployment of a peace operation or an increase of personnel to an existing mission, the PSC should consult very closely with the AU Commission and key troop and police contributors. IV. The PSC should ensure that when it issues mandates, they are informed by i) a comprehensive assessment of the situation in a given theatre, and ii) the available resources human and materiel - for the proposed deployment. V. The AU should continue to urge its members to contribute to the Peace Fund and explore other options such as a peace tax to strengthen its internal funding mechanisms to support it peacemaking initiatives as it continues to negotiate options for the use of UN assessed contributions to support its operations. increase its engagement with national and regional centers of excellence in order to increase the number of troop and police contributors, qualitatively and quantitatively. VIII. The AU should establish a high-level expert working group consisting of representatives of the Peace and Security Council and civil society to explore the substantive and practical aspects of establishing an African criminal court to the deal with the growing violations of humanitarian and human rights law in conflict zones across the continent. Sustainable peace cannot be built on impunity. IX. The AU should ensure that critical aspects of the road map recommended by the AUPD such as the establishment of a hybrid court and a truth commission are implemented. X. The AU should establish a Best Practices Unit in its Peace Support Operations Division (PSOD) to ensure that lessons from past and current peace operations are properly captured and applied to future planning. XI. The AU should establish a standing Mediation Support Unit to support its peacemaking efforts.** VI. Dialogue between the UNSC and PSC should be increased by holding at least two annual meetings: first, at the foreign minister level and second, at the head-ofstate level. VII. The AU should approach strengthening its civilian capacities as a matter of urgency. Moreover, it should Dilemmas of Regional Peacemaking 5 ** I would like to thank Bruce Jones, Peter Arthur, Fiona Simpson, Mashood Issaka, Theresa Whitfield, Matthew Benson, and Adam Lupel for their invaluble comments on the paper. However, I remain solely responsible for any errors and omissions. Sections of this paper were originally written as a commissioned study for the Fundación para las Relaciones Internacionales y el Diálogo Exterior (FRIDE); that paper will be published seperately by FRIDE in English and Arabic in Spring 2010.

8 Center on International Cooperation Introduction Darfur has proved to be a major test of the African Union s (AU) capacity to undertake complex peace making, especially when it involves the deployment of large numbers of peacekeepers. The brutal conflict had become synonymous with genocide especially in the United States; although most, including the AU have not described it in those terms. As the conflict between the Government of Sudan (GoS) and the southern-based Sudan People s Liberation Army/ Movement (SPLA/M) raged for over two decades, the longstanding tensions in Darfur were neglected. Negotiations led by the Intergovernmental Authority on Development (IGAD) in South culminated in the Comprehensive Peace Agreement (CPA) in January 2005, marking the end of one of Africa s longest running civil war; a conflict that had claimed approximately two million lives and displaced millions more. However, the historic marginalization of Darfur by the central government rendered celebrations marking the end of the north-south conflict short-lived, as news of mass murder involving government soldiers and their infamous militia ally, the Janjaweed, eclipsed the much celebrated deal. In Darfur, the GoS and Janjaweed were initially pitted against the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM), the two groups that had taken up arms against the Islamist government in early As the international media focused its radar on Darfur, the gravity of the situation was exposed with scenes of death and destruction. Images of violence evoked memories of earlier atrocities, most notably, the 1994 Rwandan genocide, leading to calls for intervention to avert a repeat of that tragedy. These calls were led by US civil society and human rights organisations concerned that the administration of President George W. Bush s preoccupation with the war on terror would overshadow the violence in Darfur. The ENOUGH Project and the Save Darfur Coalition are two of the most notable civil society movements to advocate sustained international response and attention to the Darfur crisis. At the same time, prominent US political figures such as Susan Rice, current US Permanent Representative to the UN; John Prendergast, former Director of African Affairs at the National Security Council and Special Advisor at the Department of State during the administration of President Bill Clinton; and Anthony Lake, former Assistant to President Clinton on National Security Affairs, have been in the forefront in calling for robust international action in Darfur. Their efforts received a temporary boost when former President George W. Bush and Secretary of State Colin Powell described the conflict as genocide. But the momentum was short-lived as the pronouncements were not followed by a robust response, politically or militarily. Nonetheless human rights activists and other observers saw Darfur as a perfect case to implement the much vaunted concept of the responsibility to protect (R2P). 1 Additionally, some observers viewed Darfur as an opportunity for the international community to salvage its image after its indifference to the Rwandan genocide. But, the much anticipated response failed to transcend the rhetoric; instead it degenerated into arguments about the right labels for what was unfolding in Darfur, reminiscent of similar debates during the genocide in Rwanda. It was soon evident that there would be no immediate robust intervention and that the people of Darfur, like the hundreds of thousands of Rwandans, were at the mercy of their killers. This prompted African leaders to invoke the norms and instruments of the newly established AU to deal with the conflict. This paper therefore analyzes the challenges surrounding the AU s response to the Darfur crisis. It explores the underlying challenges of adopting a regional approach i.e., the AU s response - to an international problem. As discussed above, the conflict in Darfur was internationalized 6 Dilemmas of Regional Peacemaking

9 due to allegations of war crimes and genocide and the vocal advocacy by US-led civil society and human rights groups that had adopted the crisis as a major part of their advocacy. The analysis is centred on the AU s two-pronged strategy; a political track, pursuing dialogue between the parties, and a military track, deploying a peacekeeping force to monitor compliance with peace agreements and protect civilians. Both tracks were supported by a range of international actors including the United Nations, the European Union and individual states, however, in the end, the support proved inadequate and ineffective as the AU s peacekeeping mission was continuously hampered by lack of resources. The AU s peacemaking efforts were further complicated and often contradicted by the complexities surrounding existing norms and emerging concepts such as consent, R2P and internationalized justice through the International Criminal Court (ICC). Background to the AU Just as World War II marked a turning point in Europe, the genocide in Rwanda had a similar effect in Africa as it galvanized the African discourse about the need to develop effective prevention and response mechanisms on the continent. The impact of the genocide was captured by former South African President Nelson Mandela, when he openly challenged his peers at a Summit of Heads of State and Government of the Organization of African Unity (OAU) in Tunis in June 1994, for failing to act to stem the tide of violence that engulfed Rwanda. Emphasizing the interwoven nature of democracy, human rights, and development, Mandela challenged the African leadership to play an active role in preventing and mitigating the effects of conflict by among other things, improving cooperation and developing effective response mechanisms. 2 Prior to the genocide in Rwanda, the OAU had established its Mechanism for Conflict Prevention, Management and Resolution 3 which was adopted at the Cairo summit in However, from the outset, it was clear that conflict prevention was the primary focus of the Mechanism, but that meant little to the thousands of civilians who were already trapped in violent intra-state conflicts. Consequently, by the early 1990s, some African states led by Nigeria, Libya, Senegal, and South Africa recognized that the changing nature of conflicts, from interstate to intrastate wars with a large number of non-state actors who typically disregarded international humanitarian law, required a robust response. This was difficult to achieve through the OAU due to a normative constraint, most notably the principle of non-intervention. Hence, the desire not to be deterred by existing normative constraints and the determination to provide adequate responses to the brutal conflicts on the continent paved the way for the AU, which was launched in Durban, South Africa, in July Emphasizing the interwoven nature of democracy, human rights, and development, Mandela challenged the African leadership to play an active role in preventing and mitigating the effects of conflict by among other things, improving cooperation and developing effective response mechanisms. The Constitutive Act: An Interventionist Regime The Constitutive Act establishing the AU is perhaps the most interventionist regime anywhere in the world. It provides for the right of the Union to intervene in a Member State pursuant to a decision by the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity, and the right of Member States to request intervention from the Union in order to restore peace and security. 4 This was a significant shift, as the principle of non-indifference would supersede that of non-intervention in situations involving war crimes, crimes against humanity and Dilemmas of Regional Peacemaking 7

10 Center on International Cooperation genocide. The paradigm shift in Africa coincided with similar trends at the global level, where there was a growing perception especially among middle powers that the concept of security needed to be redefined to include nonmilitary issues. In other words, human security should take precedent over the state-centric approach that held sway throughout the Cold War. To implement its ambitious peace and security agenda, the AU established the Peace and Security Council 5 as the standing decision-making organ for the prevention, management and resolution of conflicts. 6 It is meant to act as a collective security and early warning instrument for timely response to both existing and emerging conflicts and crises in Africa. The PSC is to be supported by the Commission, a Panel of the Wise, a Continental Early Warning System, an African Standby Force (ASF) and the Peace Fund. A Panel of the Wise consisting of prominent Africans was established in Plans are also under way to operationalize the African Standby Force and the continental early warning system. 7 Effort to operationalize the ASF has registered varying degrees of progress, with most sub-regions adopting the policy and legal frameworks for establishing the regional standby brigades; the pillars of the ASF. Having adopted this interventionist regime, the AU s intervention in Darfur was not surprising. It had to live up to its principles, thereby separating itself from the policies of its predecessor, the OAU, which was criticized for its inaction in the face of gross violations of human rights. Moreover, the AU was keen to insulate the Naivasha Peace process between the GoS and SPLM from the conflict in Darfur. Consequently, the AU pursued a military/peacekeeping and a political track to dealing with the conflict, both of which will be discussed in turn. The Political Track From the start, the AU pushed for a negotiated settlement to the conflict in Darfur. Mediation efforts led by the AU and President Idris Dèby of Chad culminated in the first ceasefire agreement between the GoS and the SLA in September But growing tensions between Sudan and Chad ended the latter s role in the peace process. The hostility between the two countries came to a head in 2008 with rebel advances on their respective capitals. The attacks were widely viewed as a tit-for-tat policy by the two rival governments. Meanwhile, peace talks continued under the auspices of the AU, culminating two years later in the Darfur Peace Agreement (DPA) between the GoS and the SLA led by Mini Minnawi. Signed on 6 May, 2006 the DPA faced serious challenges from its inception primarily because it was a partial agreement that did not enjoy the support of the two other parties to the conflict - the JEM and the other SLA faction led by Abdoul Wahid. The DPA was further undermined by the divisions among the armed groups along ethnic lines, pitting the Zaghawa against others, most notably, the Fur, the largest ethnic group in Darfur. This rift led to increased frictions among the armed groups and their civilian sympathizers in the internally displaced persons camps and continues to hinder efforts at reaching a political settlement. Signed on 6 May, 2006 the DPA faced serious challenges from its inception primarily because it was a partial agreement that did not enjoy the support of the two other parties to the conflict - the JEM and the other SLA faction led by Abdoul Wahid. The Darfur Peace Agreement (DPA) Despite its flaws, the DPA attempted to address the contentious issues of security, power and wealth sharing, but it failed as it was rejected by two key faction leaders and their followers in Darfur. Unsurprisingly, the post-dpa period witnessed an increased splintering of the armed 8 Dilemmas of Regional Peacemaking

11 groups leading to the emergence of various groups with no clear political agenda, further complicating the mediation efforts. Implementation of the DPA proved to be a tricky challenge for the AU, especially as the non-signatories viewed the organization as biased due to its role in negotiating the agreement. This resulted in a marked increase in armed attacks on AMIS personnel, hindering its activities. The attack on an AU base in Haskanita in September 2007 that left 12 peacekeepers dead and many more injured was the largest single attack on AMIS. The ICC has since brought charges against Bahar Idriss Abu Garda, the leader of the group that is believed to have carried out the attack. In a surprise move Garda voluntarily surrendered to the ICC in May 2009; the first such voluntary surrender to the Court. 8 However, in a surprise twist-and a blow to the ICC prosecutor-in February 2010, judges of the court dropped charges against Garda citing lack of evidence. These attacks manifested a wider deterioration of security due to the weakening of the command and control structures of the armed groups and open hostility to the AMIS. The renewed fighting exacerbated the humanitarian situation. Despite these challenges, the AU established the DPA Implementation Team (DPAIT) with a mandate to spearhead the implementation of the agreement. The DPAIT was to work closely with the Chairperson of the Darfur-Darfur Dialogue and Consultation (DDDC). The DDDC was to address issues ranging from security, claims of marginalization and exclusion and socio-economic development to reconciliation. It was envisaged as a bottom-up approach to remedy some of the anomalies that resulted from the top-down approach of the Abuja peace process. The central aim was to increase the local population s sense of ownership of the peace process, thereby legitimizing it. Moreover, it was meant to encourage dialogue among the people of Darfur. But, since the vast majority of the people had already rejected the DPA, efforts to convene the DDDC were obstructed, undercutting the bottom-up peacemaking approach that had been envisaged. However, the AU s PSC endorsed the DPA and set a deadline for the non-signatories to sign or face sanctions. 9 Unsurprisingly, the groups failed to comply, forcing the PSC to impose targeted sanctions including a travel ban and an asset freeze on the leadership of the factions who were now viewed as spoilers. 10 But the sanctions were largely symbolic since the AU lacked the leverage and means to enforce them. Additionally, the move put the AU at loggerheads with the affected groups, who were already sceptical about its role. Consequently, disagreements about the DPA weakened the AU s peacemaking efforts plunging the entire peace process into disarray. Throughout the talks there was undue emphasis on concluding the negotiations, even after the parties had repeatedly demonstrated a weak commitment to the peace process and no will to implement any potential agreement. From the start, the i n t e r - S u d a n e s e peace talks in Abuja were plagued by differences between the AU and UN, the other partner in the peace process. While the UN favoured a more phased approach, the AU aimed for a comprehensive agreement, because the parties had signed earlier agreements, which in its view provided a basis for a final settlement. 11 Although these differences were minor, the mediation efforts faltered due to what some have described as deadline diplomacy and a lack of commitment by the parties. 12 Throughout the talks there was undue emphasis on concluding the negotiations, even after the parties had repeatedly demonstrated a weak commitment to the peace process and no will to implement any potential agreement. This situation was summed up by the head of the AU mediation team Sam Ibok, when he stated that our experience over the past sixteen months has led us to conclude that there is neither good faith nor commitment on the part of the any of the parties. 13 Dilemmas of Regional Peacemaking 9

12 Center on International Cooperation Nonetheless, the pressure to conclude the negotiations was relentless due to a combination of factors. The donors, most notably, the quartet - the United States, Britain, Canada and the EU - who funded the talks, repeatedly threatened to withhold their financial support if the parties failed to reach an agreement. The quartet and the UN believed that signing an agreement would pave the way for a transition from the under-resourced AMIS to a more robust UN peace operation. This logic failed since even after the DPA was signed, the GoS refused to consent to the transition, an issue that will be returned to later. The government s intransigence over the transition coupled with the anti-dpa propaganda by the non-signatories exposed the weakness of the logic that partly drove the deadline diplomacy. 14 The flawed logic of this approach was captured by Laurie Nathan who argued that the deadline diplomacy was the strategy and the plan, and it was far too simplistic, vacuous, and rigid for this purpose adding that the external pressure fixed in place a process and trajectory in which neither the mediator nor the parties had any confidence, but from which little deviation was possible. 15 The approach failed partly due to the absence of penalties for non-compliance. As one deadline after another was missed, the parties realized that the threats were hollow and were therefore not inclined to abide by future deadlines. A major consequence of this approach was the rejection of the DPA since it was viewed as an output that was driven by external imperatives which were out of sync with their demands. The non-signatories regarded the process as an attempt to impose peace without adequately addressing the issues at the heart of the conflict. Perhaps more time might have helped to narrow the gap between the parties. The peace talks were also confronted with questions of timeliness as summed up by a senior AU official who observed that: the peace negotiations were launched at a time when both parties believed they could advance their positions on the battlefield. Therefore, each was a reluctant negotiator from the outset. Until the very end of the talks the parties tended to see the Abuja talks as a tactical forum, rather than the central stage on which a solution to Darfur s conflict could be found. 16 In the end, lack of commitment by the GoS and the armed groups doomed the agreement from the start as their actions contributed to undermining the security situation with more actors emerging from the splintering and their differences widened. Furthermore, it removed any possibility of implementing what was already a weak agreement. While the signatories of The peace negotiations were launched at a time when both parties believed they could advance their positions on the battlefield. Therefore, each was a reluctant negotiator from the outset. Until the very end of the talks the parties tended to see the Abuja talks as a tactical forum, rather than the central stage on which a solution to Darfur s conflict could be found. the DPA used it as a license to mount military offensives, the non-signatories embarked on a propaganda campaign to discredit the agreement by invoking the ethnic card. The end result was deepened animosity and a poisoned peacemaking environment. This undermined the AU s peacemaking efforts as its mission on the ground struggled to keep a non-existent peace and the negotiations faltered. Joint UN-AU Mediation Meanwhile, efforts by the Joint AU-UN mediation team to jump start the peace process has yet to gain traction. Initially led by two mediators, Salim Ahmed Salim and Jan Eliasson from the AU-UN respectively, the joint mediation is tasked with bringing the warring parties together, a task that it failed to accomplish. The AU and UN were criticized for appointing two part-time mediators for a process that 10 Dilemmas of Regional Peacemaking

13 required fulltime engagement. Following this criticism they appointed Djibril Yipènè Bassolé, former Foreign Minister of Burkina Faso, as the joint mediator. But Bassolé has yet to reinvigorate the peace process as the parties showed little inclination to negotiate, as some of the armed groups were emboldened by the ICC s arrest warrant for president Bashir issued in March an issue that will be discussed in detail later. At the time of writing, the Joint mediation s efforts appear to have gained some momentum with the holding of workshops for civil society from Darfur so as to give them a more prominent role in the peace process. However, there were critical hurdles that needed to be addressed if the outcome of the Qatari peace process is not to suffer the same fate as previous efforts, especially the Abuja peace process. Following the indictment, some of the groups refused to negotiate with the government arguing that they would not negotiate with an indicted war criminal. The negative effects of the indictment on the peace process were echoed by Senegalese President, Abdoulaye Wade, who warned that the accusations of President Bashir by the International Criminal Court have come to complicate things, because the rebels now say, how can we now negotiate with a president who s going to go to prison, so that s what caused a setback in negotiations with the rebels. 17 Although Qatar s hosting of the joint AU-UN peace process is laudable, it introduces an additional layer of complication given that Qatar is not viewed as an impartial actor by all the parties. This is due largely to Qatar s support for the government of Sudan during its tenure as a non-permanent member of the UN Security Council (UNSC). Additionally, the tug-of-war between Qatar and Egypt over the hosting of the peace process could potentially presents the parties with alternative forums. This would break a cardinal rule in mediation, the need for unity and to speak with one voice. Failure to adhere to this rule has often resulted in forum shopping by parties to a conflict giving them an opportunity to play one mediator against another. The joint mediation s involvement in the Qatari peace process, the Qatar- Egypt rivalry and other initiatives threatens to undermine its role as it risks ceding convening powers to actors that lack the confidence of all the parties. Internationalized Justice The negative effects of the indictment on the peace process were echoed by Senegalese President, Abdoulaye Wade, who warned that the accusations of President Bashir by the International Criminal Court have come to complicate things, because the rebels now say, how can we now negotiate with a president who s going to go to prison, so that s what caused a setback in negotiations with the rebels. Meanwhile, the arrest warrant 18 issued for President Bashir by the ICC, on 4 March 2009, added another complex layer to the crisis, threatening to overshadow the joint UN-AU peacemaking in Darfur and potentially erode implementation of the CPA. Additionally, open rifts between the UNSC and the PSC over the indictment tested their evolving partnership, with negative consequences for the faltering Darfur peace process. The issue split the two Councils, as the PSC made repeated requests to UNSC to suspend the indictment by invoking Article 16 of the Rome Statute. The PSC s requests failed to elicit a positive response from the UNSC. Three Permanent Members of the Security Council - the UK, US and France - insisted that the ICC process should be allowed to run its course. For the most part, the trio maintained their support for the indictment, despite some vacillations by President Nicolas Sarkozy of France who on several occasions offered to support a suspension of the indictment if Sudan agreed to meet certain conditions, including full cooperation with the United Nations/African Union Hybrid Mission in Darfur (UNAMID). These offers Dilemmas of Regional Peacemaking 11

14 Center on International Cooperation elapsed but had the unintended effect of widening the rift between the two Councils given that the UNSC might have considered France s request for a suspension based on the usual quid pro quo among the five permanent members of the UNSC even after it had repeatedly ignored similar requests by the PSC. The US - though not a State Party to the ICC - under President George W. Bush and Barack Obama, supported the indictment. However, China and Russia, the other two Permanent Members of the UNSC, raised doubts about the efficacy of the move arguing that the GoS should be given time to deal with what they view as a domestic affair. However, despite their objections, neither has offered to champion the AU s call for a suspension of the indictment. is a permanent institution and as such, its activities are not dictated by timelines, as is the case with the ad hoc tribunals. They therefore questioned the rationale behind the ICC s ill-timed move given its potential consequences on Sudanese and regional stability. The African Union High-Level Panel on Darfur More generally, the indictment touches on the dilemma of whether peace should be pursued before justice or justice before peace, a challenge that confront most post-conflict societies. This is a fundamental challenge for the AU and the international community given its engagement in efforts to resolve conflicts that are characterized by serious crimes that run contrary to its founding principles. Although the AU did not object to the indictment per se, it expressed alarm at the poor timing, which in its view could worsen the Darfur crisis, despite the fact that two African members of the UNSC (Benin and Tanzania) had voted in support of the referral to the ICC. 19 The AU was concerned that the timing would complicate peacemaking efforts in Darfur and potentially undermine the CPA. 20 The AU also expressed concerns about the safety of peacekeeping personnel in Darfur, the bulk of whom were Africans, fearing that any reprisals by Khartoum and its militia allies would be directed at them. The AU s response to the warrant was summed up by Jean Ping, the Chairperson of the AU Commission who tried to walk the tightrope between dealing with peace and justice when he stated that we support the fight against impunity but we say that peace and justice should not collide, that the need for justice should not override the need for peace. 21 Supporters of the AU on the issue of timing, including this author, point to the fact that, unlike the tribunals for the former Yugoslavia and Rwanda, and the Special Court for Sierra Leone, the ICC The establishment of the African Union High-Level Panel on Dafur (AUPD) by the PSC following the warrant for President Bashir was perhaps the most practical step by the AU to deal with this lingering dilemma. The Panel, consisting of eminent Africans led by former South African President Thabo Mbeki was The AUPD was established against the backdrop of a growing concern among African leaders of what they perceive as the abuse of the principle of universal jurisdiction. These concerns were described by a 2008 AU Summit as a development that could endanger International Law, order and security. mandated to examine the situation in depth and submit recommendations to the Council on how best the issues of accountability and combating impunity, on the one hand, and reconciliation and healing on the other, could be effectively and comprehensively addressed 22 The AUPD was established against the backdrop of a growing concern among African leaders of what they perceive as the abuse of the principle of universal jurisdiction. These concerns were described by a 2008 AU Summit as a development that could endanger International Law, order and security 23 pointing to what the Summit viewed as the political na- 12 Dilemmas of Regional Peacemaking

15 ture of legal proceedings initiated by non-african judges, most notably from France and Spain, against officials in the current government of Rwanda, including President Paul Kagame. The actions of these judges they argued violated Rwanda s sovereignty and territorial integrity. Subsequently, the Summit called on its members to disregard such warrants and EU member states to impose a moratorium on any arrests until the AU, EU and UN have had time to discuss the complex diplomatic, political and legal issues involved. 24 The AUPD marks an important step in the AU s response to the need to strike an appropriate balance between dealing with impunity and promoting peace and reconciliation. However, in the absence of an AU framework and/or capacity to tackle the perpetrators of such crimes, the UN has stepped in through ad hoc mechanisms most notably, the International Criminal Tribunal for Rwanda 25 (ICTR) and the Special Court for Sierra Leone 26 (SCSL), to deal with impunity. But the operations of the Tribunal and the Special Court brought to the fore several issues relating to ownership, cost and legacy. The courts have been criticized for the undue influence of the international community over their operation - especially the SCSL which is a hybrid court - partly a function of the fact that funding, for the SCSL was provided primarily by Western countries. At issue also, was the high cost of the trials in relation to the number of persons being tried in the face of questions about the legacy of the Courts, specifically, their impact on national judicial systems. 27 Despite initial reservations about its impartiality, the AUPD s recommendations were critical of the GoS. The AUPD criticized the GoS s response to crimes in Darfur as ineffective and confusing.. 28 Additionally, and perhaps more disappointing to President Bashir, the AUPD did not take a position on his indictment by the ICC or the AU s call for a suspension of the warrant; instead, it adopted a balanced approach by recommending restorative and retributive forms of justice through what it calls an integrated Justice and Reconciliation Response to Darfur (JRRD). It called for the establishment of a Justice, Truth and Reconciliation Commission (JTRC) and a Hybrid Criminal Court constituted by Sudanese judges and other nationalities. The latter, which is more contentious, is to ensure that more people are held accountable since the ICC can only handle a few cases; and this is perhaps an implicit acknowledgement of the ICC s role in the search for justice in Darfur. In addition, the AUPD recommended the use of traditional By all accounts, the AUPD s recommendations are far-reaching and ground breaking, especially the recommendation for a hybrid court. Now it remains to be seen whether Khartoum would comply with the recommendations and if it fails to do so, how the AU would ensure that the GoS complies with its recommendations. justice mechanisms to try perpetrators at the community level. 29 The AUPD, however, hinted at the need for flexibility by the UNSC and the ICC, indirectly invoking the complementarity principle in the Rome Statute which requires the ICC to defer to national authorities if they demonstrate willingness and capability to prosecute alleged culprits. By all accounts, the AUPD s recommendations are far-reaching and ground breaking, especially the recommendation for a hybrid court. Now it remains to be seen whether Khartoum would comply with the recommendations and if it fails to do so, how the AU would ensure that the GoS complies with its recommendations. The establishment of the AU High Level Implementation Panel on Sudan (AUHIP) consisting of the three former Heads of State who produced the AUPD report is a step in the right direction. However, early indications are not promising since the government has already rejected the recommendation for the establishment of a hybrid court, because that would be a violation of its constitution, but it accepts the other recommendations in principle. Dilemmas of Regional Peacemaking 13

16 Center on International Cooperation In spite of these far-reaching recommendations, the AUPD s report was dealt a blow by the AU s decision not to cooperate with the ICC in arresting President Bashir. 30 Following the decision, some armed groups in Darfur refused to meet with the AUPD as they questioned the impartiality of the AU and the Chairperson of the AUPD, former president Mbeki. But the decision not to cooperate with the ICC came as a little surprise given Libyan President and AU Chairperson Colonel Muammar Gadaffi s support for President Bashir and his staunch opposition to the ICC. 31 Efforts to present the decision as one that was based on consensus failed as several member states (Botswana, Ghana, Chad and South Africa) distanced themselves from it, promising to abide by their treaty obligations. Although Ghana, Botswana, and South Africa rejected the decision, Chad was the only country that officially registered its reservation when the decision was taken in Tripoli. This was however, not surprising given the bad blood between Khartoum and Ndjamena. It was however, apparent that even some state parties that objected to the move did so out of frustration with the UNSC which had ignored the PSC s repeated requests for a suspension of the indictment. This frustration was expressed by Ghana s Foreign Minister despite his country s opposition to the decision when he stated that we have been a little unhappy about the whole process the AU actually addressed a resolution to the Security Council asking the SC to defer the warrant for one year, and it was virtually ignored. That we thought was a slap. 32 Thus, the AU s decision not to cooperate with the ICC was directed at the UNSC for being unresponsive to its request; the failure of the ICC to garner support is therefore collateral damage suffered in the failed dialogue between the two Councils. This development does not bode well for Although a mass walk-out by the African State Parties as advocated by Libya is remote, the ICC needs to embark on a charm offensive to fend of criticisms of bias from certain African countries including the signatories to the Rome Statutes. Part of this offensive should include a clear demonstration by the ICC that it can go where the evidence leads it and is not deterred by the whims of the powerful members of the international community, as appears to be the case at the moment. the partnership between the two, given that the bulk of the UNSC s work is on Africa and the growing profile of the PSC on the continent and at the international level. How such differences are dealt with in the future would determine the strength of partnership between the two institutions. Meanwhile, the response of individual AU member states to the indictment varied. While Senegal the first African signatory of the Rome Statute - and others voiced their reservations over the move, Botswana for its part applauded it, while Libya forcefully rejected it, calling on African State Parties to withdraw their membership from the ICC. Although a mass walk-out by the African State Parties as advocated by Libya is remote, the ICC needs to embark on a charm offensive to fend of criticisms of bias from certain African countries including the signatories to the Rome Statutes. Part of this offensive should include a clear demonstration by the ICC that it can go where the evidence leads it and is not deterred by the whims of the powerful members of the international community, as appears to be the case at the moment. The stakes are high for both; it is not in the interest of either of them to be seen as obstructing justice or peace. The challenge is how to ensure that peace and justice are viewed as complementary and not mutually exclusive. The indictment of President Bashir exposed the fault lines in Afro-Arab relations in the AU and beyond. The responses of Arab members of the AU and their sub-saharan counterparts were starkly different; sub-saharan members fa- 14 Dilemmas of Regional Peacemaking

17 vored the move while their counterparts in the North objected to it. While these divisions were less evident in voting patterns in the AU s Peace and Security Council (PSC), they were however, evident in the UN Security Council (UNSC) where Arab members of the Council either voted against actions directed at the GoS or abstained. The differences became more pronounced following the warrant of arrest for President Bashir and the AU s decision not to cooperate with the ICC. North African states, most notably Libya pushed for the decision, as some sub-saharan members broke rank with the AU. In fact, with the exception of Eritrea, Ethiopia and Zimbabwe, President Bashir s defiant visits following the warrant were limited to North Africa and the Middle East. He canceled several planned visits to South Africa and Uganda due to uncertainties about the response of authorities in those countries. 33 Additionally, President Bashir skipped the special PSC summit in Abuja, Nigeria, which was convened to discuss the AUPDl report. Plans by the AU to establish an African criminal justice mechanism emerged as one of the consequences of the ICC s indictment of President Bashir and growing perceptions among African leaders about abuse of the principle of universal jurisdiction. A recent meeting of the AU s Executive Council in Kampala, Uganda endorsed proposals to establish an African court with criminal jurisdiction. 34 While some might see this as an attempt to circumvent the ICC, this is a laudable move that could ensure African ownership on the one hand and accountability for egregious crimes on the other. But in order for such a mechanism to be effective and credible, the AU needs to take concrete steps to bridge the gap between its political pronouncements and its poor record of implementation due largely to an acute commitment gap in terms of resources. Failure to address this chasm would undercut its ownership claims and weaken its capacity to implement its intrusive peace and security agenda. At the institutional level the AU s reponse reveals important differences between its two key decision making organs, the Summit of Heads of State and Government and the PSC: The Summit of Heads of State is more political, and its actions are often driven by the political outlook of the chair of its rotating presidency. For instance, Libya - in its capacity as the AU Chair - strongly pushed for the decision not to cooperate with the ICC. First, and less surprising, the Summit of Heads of State is more political, and its actions are often driven by the political outlook of the chair of its rotating presidency. For instance, Libya - in its capacity as the AU Chair - strongly pushed for the decision not to cooperate with the ICC. The decision was subsequently repudiated by several members on procedural and substantive grounds. From the substantive standpoint, the decision put African States Parties to the ICC at odds with their treaty obligations. Moreover, Libya was accused of failing to respect the laid down procedures in the debates leading to the decision and even arm-twisted some of the smaller countries into supporting its position. The subsequent fallout from this decision demonstrates the challenges of achieving consensus at the Summit level. Libya s role in this instance demonstrated the impact of the chair of the AU on its peacemaking initiatives. Additionally, Summit meetings are susceptible to horse-trading due to the diverse and varying interests of member states. These interests are often shaped by national, sub-regional or other considerations. For instance, countries from the same sub-region tend to band together on issues that affect them directly. Generally, the position of members of a particular subregion is shaped by the posture of regional hegemons: Nigeria in West Africa, South Africa in southern Africa, Egypt/Libya/ Algeria in North Africa and Kenya/ Ethiopia in the broader horn of Africa. Dilemmas of Regional Peacemaking 15